Telephone Consumer Protection Act
- 4 min read
The Telephone Consumer Protection Act Sets the Rules Telemarketers Must Follow
If you are bothered by telemarketers calling your land line or cellphone, go to the National Do-Not-Call Registry and enter your telephone numbers into this database of do-not-call numbers all commercial telemarketers must follow.
The do-not-call database was created by Congress in 1991 in in response to consumer complaints about a growing number of unsolicited telemarketing calls to their homes and the rise of automated and prerecorded messages, which are called “robocalls.” Congress tasked the Federal Communications Commission (FCC) to enforce the TCPA.
|Telephone Consumer Protection Act Facts|
|TCPA created the National Do-Not-Call Registry|
|Outlaws telemarketing calls before 8 am or after 9 pm|
|Telemarketers must create their own do-not-call lists|
|Telemarketer may not re-call a consumer who asks for no further calls|
|Telemarketers must transmit company name & phone number to CallerID devices|
|Limits calls from telemarketers with which consumer has an established business relationship|
|Telemarketers using pre-recorded calls (robocalls) must have unambiguous written consent from consumer|
|TCPA applies to voice and SMS text messages|
|Tax-exempt, non-profit organizations are exempt from some parts of the TCPA|
Sources: FCC, Telephone Consumer Protection Act of 1991 (105 Stat. 2394)
Under the TCPA, commercial telemarketers, or people and organizations that use the telephone or SMS text messaging to cold-call people to buy goods and services, must follow a set of rules when making a call. The caller must:
- Provide his or her name
- Disclose the name of the person or entity on whose behalf the call is being made
- Disclose the telemarketer's telephone number or address
- Not call before 8 am or after 9 pm
- Keep their own do-not-call list
Under the TCPA, robocallers may not be used to contact numbers assigned to:
- An emergency telephone line
- A line of a guest or patient room at a hospital, health care facility, home for the elderly or similar
- A paging service, wireless phone service (including voice and text messages) or other commercial mobile radio service, or
- Any telephone or similar service for which the consumer would be charged for the call
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However, the TCPA has a list of exemptions, too. These include charities and non-profits, and calls from local municipalities to alert local residents of emergencies, such as pending floods and similar imminent disasters.
October 2013 Changes to TCPA
Starting in mid-October 2013, telemarketers must have prior express written consent for all autodialed and/or pre-recorded calls/texts sent/made to cell phone and pre-recorded calls made to residential land lines for marketing purposes. Your consent must be unambiguous, meaning you must receive "a clear and conspicuous disclosure" you will receive future autodialed or robocalls. Before mid-October, advertisers and telemarketers could rely on the existing business relationship with you. However, the new law requires advertisers and telemarketers to receive your written consent even if they previously had a business relationship with you.
Penalties for Violating the TCPA
Consumers can ask for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited call or message. If you receive unsolicited autodialed or pre-recorded robocalls from telemarketers, consult with a lawyer in your state who has consumer law experience. Unlike other federal consumer protection laws, the TCPA does not allow the consumer to collect attorneys fees in addition to the statutory damages. However, some states such as California have laws similar to the TCPA that allow consumers to collect attorneys fees (Calif. Civil Code §1780 (a), (d)). This would result in no out-of-pocket costs to you.
If you believe a telemarketer has violated the TCPA, consult with a lawyer to learn if filing a lawsuit is worth the expense. Consumers file about 1,000 lawsuits each month against telemarketers violating the TCPA, according to WebRecon LLC, a market research firm.
Check State Laws
The 11th Circuit Court decided that consumers who gave debt collectors permission to call their cell phones can revoke their consent. This decision applies directly to consumers residing in Alabama, Georgia, and Florida, but is persuasive in court cases in other states (Osorio v. State Farm Bank FSB, No. 13-10951, 11th Circuit 2014). The Osorio decision is similar to 2013 Third Circuit Court of Appeals decision that impacts consumers residing in Pennsylvania, New Jersey, and Delaware (Gager v. Dell Financial Services, No. 12-2823, 3rd Circuit 2013).
Different Rules Apply To Debt Collection Calls
The Telephone Consumer Protection Act does not apply to debt collection calls. By definition, a debt collector is not trying to sell you something, but is trying to brow-beat you into paying a debt it thinks you owe. Debt collectors who call you must follow a different set of federal rules found in the Fair Debt Collection Practices Act (FDCPA). Follow the hyperlink just mentioned to learn more about the calling rules for collection agents.
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Under new rules added to the Telephone Consumer Protection Act in October 2013, telemarketers using autodialers and robocalls must have your explicit consent before calling you. However, non-profits and local governments are exempt from the rules.
- Make a log of unwanted calls to your landline and cell phone.
- Consult with a lawyer who specializes in TCPA violations.
- File a lawsuit against a telemarketer that violates the TCPA.
In 1991, non-profits and political parties were not using automated devices to annoy consumers on a wide scale. Accordingly, the TCPA has looser rules for non-profits, such as charities, religious groups, and companies conducting polls. Political groups fit the exemption, too. But regardless if the organization using the automated device is a for-profit or non-profit, it must provide these two pieces of identifying information: • Immediately disclose the name of the person or entity responsible for the call • During the call, disclose the phone number of the person or entity responsible for the call
The rules for using automated devices to call cell phones and SMS text messaging are the same whether the organization is a for-profit or non-profit. Any caller must have the consumer's express permission before they may use an automated device to call or text-message a cell phone.• Calls and text messages made for emergency purposes • Calls and text messages made with the prior express consent of the consumer
As hinted at in the article above, the TCPA has two exceptions to the ban on automated calls to cell phones:
Unsolicited calls from political campaigns do not fit either exception. Therefore, a political party, PAC, or charity violates the TCPA if it makes an unsolicited automated call to your cell phone.
One final note: Political parties and churches sometimes set up phone banks where rows of volunteers manually call consumers. These human-powered phone banks are not subject to the TCPA.